Defendants get aggressive in Texas illegal downloading suit

In September 2010, Mick Haig Productions, a German film production house, sued 670 unidentified “John Doe” defendants whom it alleged illegally downloaded its pornographic film “Der Gute Onkel” (The Good Uncle) from BitTorrent, a peer-to-peer file-sharing website. Plaintiffs attorney Evan Stone filed a motion for expedited discovery, seeking to reveal the identities of Internet users whom it had identified as illegal downloaders by their IP addresses.

Under similar circumstances, many judges have granted such motions without much briefing or discussion. But Northern District of Texas Judge David Godbey was skeptical of the case. He did not immediately rule on the motion. Instead, he issued an interim order requiring the defendants’ Internet service providers (ISPs) to preserve potential evidence, and appointed attorneys from the Electronic Frontier Foundation (EFF) and Public Citizen’s Litigation Group to represent the interests of the John Does as counsel ad litem. The appointed lawyers objected strongly to the motion for discovery.

While the motion was still pending, one of the John Does contacted EFF with questions about the case. His ISP had notified him that it had received a subpoena seeking his identity. At that time, Stone had not been authorized to issue any subpoenas.

Matt Zimmerman, one of the EFF attorneys representing the defendants, contacted Stone to ask about it. Stone dismissed the case with prejudice shortly thereafter. In his motion to dismiss, he complained that the court’s delay in permitting discovery precluded Mick Haig from getting an appropriate remedy for the copyright violations.

But Zimmerman suspected that something else was afoot. He filed a motion for sanctions against Stone. In the process of litigating that motion, the defendants learned that Stone’s firm had sent subpoenas to 10 ISPs and had received information identifying some of the John Does. Stone was sanctioned $10,000 and ordered to pay more than $22,000 in attorneys’ fees to the ad litem attorneys. The 5th Circuit upheld the sanctions on July 12 in Mick Haig Productions EK v. Does 1-670.

Settle or Dump

The Mick Haig case presents a scenario familiar to many copyright defense attorneys. They contend that plaintiffs are abusing subpoenas to identify people and then squeeze them for settlements without any real interest in litigating the merits of the case.

“I am not aware of any of these cases that have ever gone to trial,” says Ian Titley, a partner at Schroder Fidlow who has defended individuals in similar copyright infringement cases. “It’s a game of chicken—many people pay a settlement to avoid being named in a lawsuit, but many who don’t settle never end up in court. The plaintiffs dismiss the case.”

Of course, there’s a lot at stake for the defendants who are threatened with suits. On top of the expense of defending a lawsuit, there’s also the embarrassment of being publicly identified as someone who illegally downloaded a pornographic movie.

“In the porn cases, plaintiffs use the courts to obtain people’s personal identifying information and then lean on them for settlement money,” Zimmerman says. “They send letters to all of the subscribers saying: ‘Settle unless you want to be associated with this.’”

Stone, for his part, contends that there is nothing wrong, or even particularly unusual, about his clients identifying the infringers and then trying to settle with them without extensive litigation.

“In a typical case, it’s easy to identify the tortfeasor—you hit my car or your dog bit me. The injured person can negotiate with the wrongdoer, and litigation is the last resort. But in copyright cases, there is no way to identify the wrongdoer without filing a lawsuit.” Stone says. “It’s a joke to call this a shakedown.”

Judicial Scrutiny

According to defense attorneys who represent people accused of copyright infringement, suits such as Mick Haig are no joke at all. In particular, they object to the plaintiffs’ strategy of naming hundreds of alleged infringers in a single case and then settling with each one for a few thousand dollars. They contend that it is improper to join all of these people in the same case because the claim against each defendant arises from a separate alleged act of downloading or copying the copyrighted work.

“Plaintiffs can obtain the personal information of hundreds of people for the $350 cost of a single court filing fee, and then extract hundreds of thousands of dollars from improperly joined defendants,” says David Tamaroff, a Miami attorney who defends copyright infringement suits.

In addition to challenging the propriety of joining hundreds of defendants in the same suit, counsel ad litem for the defendants in Mick Haig also argued that the court lacked personal jurisdiction over the defendants, many of whom resided outside of Texas, and that the plaintiffs had not presented sufficient evidence of copyright infringement to overcome the defendants’ First Amendment right to engage in anonymous expression on the Internet.

“Courts have permitted plaintiffs to issue subpoenas to ISPs in these cases, but these arguments were being made in ex parte motions where the defendants weren’t in a position to oppose them,” Zimmerman says. “Courts are becoming more aware of the abuses.”

Counsel for the John Does in Mick Haig are still trying to determine if Stone’s firm contacted any of the defendants or received settlements from them. Stone had no comment on the topic.